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Tuesday, October 20, 2009

Victorian FOI precedents support sticking to "confusion" line

The framework for consideration of public interest issues regarding disclosure of deliberative documents under the Freedom of Information Act in Victoria continues to be constrained by precedents that sound out of line with the discussion of open government elsewhere, as evident in this decision by Deputy President Coghlan of the Victorian Civil and Administrative Tribunal in Peter Ryan MP v Melbourne Water [2009] VCAT 2079.

The documents in dispute were an email and attachments relating to the possible entitlement Melbourne Water will hold to water from the Goulburn River.They canvassed potential scenarios about possible water supply and were sent by a junior officer of the Department of Sustainability and Environment to an officer at Melbourne Water. It was clear that the documents were support tools used by the Department, were subject to updating, didn't contain the full story, and were not at the time intended for public release.

Despite weighty arguments [21] about the public interest in disclosure put forward by Mr Ryan, Leader of the National Party in Victoria, those argued against disclosure [22] persuaded Deputy President Coughlan [23-36] to find disclosure would be contrary to the public interest. The decision was underpinned by the acknowledgment of precedent that " where a document does not of itself accurately or fully reflect the reasons for a particular action or decisions made by an agency, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)"[19]; and that it is contrary to the public interest to disclose a document "which would potentially mislead and confuse any debate about a general topic where it deals only with a narrow range of specific issues. If it is susceptible to misinterpretation or mischievous interpretation, disclosure is contrary to the public interest (see Hulls v Victorian Casino and Gaming Authority ((1997) 12 VAR 483 at 488)."[20]

Whether the documents would be released elsewhere is hard to say. However the possibility of misinterpretation or misunderstanding a document by the applicant is an irrelevant public interest consideration that must not be taken into account in the Queensland RTI Act and in the Commonwealth Exposure Draft of March 2009. The NSW GIPA Act even more sensibly extends this to misunderstanding or misinterpretation of released information by any person.

Mr Ryan couldn't get anywhere either in arguing the Tribunal should exercise its limited override discretion to release the documents, even though found to be exempt. Deputy President Coughlan said the grounds he had put forward were

"abstract grounds such as the desirability of accountability and greater transparency, which as the Court of Appeal in Secretary, Department of Justice v Osland [2009] VSCA 69 has said have no role in the consideration and application of s 50(4). The public interest must require release, it is not enough that release might advance or promote such matters."[39]

Override discretions to one side, the object provisions in the Queensland and NSW Acts, and the Commonwealth Exposure Draft might make it more generally hard where those laws apply or will apply, to dismiss arguments for disclosure because of "such abstract grounds as the desirability of accountability and greater transparency."

There is no sign of government interest in broad FOI reform in Victoria, as pointed out by David Rood of The Age in the Law Report today.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.